A system that allows the nonculpable to be punished can be described as having Type I errors, and a system that allows the culpable to go unpunished has Type II errors. This article argues that civil law and criminal law in the corporate law arena must be harmonized to restore the traditional policy preferences of allowing free access to the civil courts while harnessing prosecutorial power. In any system that determines guilt or liability, participants in that system should want to reduce both Type I errors, in which a nonculpable party is found to be culpable, and Type II errors, in which a culpable party is found not to be culpable. Because no system will ever be perfect, eliminating these errors entirely is not feasible. Should the system be altered by merely reforming criminal pros...
The seventh annual A. A. Sommer, Jr. lecture on corporate, securities and financial law is presented. In her lecture titled "The UK FSA: Nobody Does It Better?," UK Financial Services Authority (FSA) Director of Enforcement Margaret Cole said it is important to emphasize that the FSA does not, and is not seeking to, authorize and regulate the funds themselves, which are outside their jurisdiction. Rather, they continue to believe that they can mitigate the risks through their existing authority over hedge fund managers and broker-dealers who provide prime brokerage services to the funds. The FSA's initiative aimed at treating customers fairly is a prime example of the FSA's strategic shift to more principles-based regulation. To conclude, Cole proposes, that nobody does it better than t...
In a lecture, William C. Dudley, president, Federal Reserve Bank of New York, discussed the economic outlook and the challenges that face the Federal Reserve in terms of monetary policy going forward. On the positive side, clearly the financial markets are performing better and the economy is recovering. Also, the Federal Reserve has begun to taper its rate of asset purchases. The Treasury purchase program will end this month and the agency mortgage-backed securities purchase program by the end of the first quarter of 2010. On the negative side, the unemployment rate is much too high and it seems likely that the recovery will be less robust than desired. The Federal Reserve has been very aggressive in responding to the financial crisis. They have rolled out numerous new liquidity facili...
The Legal Origins approach, and the wealth of literature it has spawned, is surely good for something other than generating more literature. The approach has garnered a great deal of criticism, but it has nonetheless raised very interesting issues about relationships between legal systems, business forms, and economic performance. It has also raised a challenge to traditional comparative law, a field that has been a bit staid and introverted. This paper offers a preliminary roadmap for interrogating the Legal Origins school. In the economic development literature one sees a great deal of concern over "shrinking policy space" for development: that is, in recent years developing countries have enjoyed less and less freedom to craft and implement their own measures to cope with the challen...
Corporate law theory and practice considers shareholder relations with companies and the implications of ownership separated from control. Yet through the Troubled Asset Relief Program (TARP) bailout and the government's resultant shareholding, ownership and control at many companies have merged, leaving corporate theory and practice for the financial and automotive sectors in chaos. The government's $700 billion bailout is a unique historical event; not merely because of its size, but also because of a resulting ripple through corporate scholarship and practice. This article builds on the author's five testimonies before Congress during the financial crisis and implementation of the TARP bailout and his consultation for the Special Inspector General for TARP. After considering corporat...
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